Citation Nr: 1301225
Decision Date: 01/11/13 Archive Date: 01/16/13
DOCKET NO. 12-30 115 ) DATE
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On appeal from the
Department of Veterans Affairs Medical and Regional Office Center in Fargo, North Dakota
THE ISSUE
Entitlement to service connection for the cause of the Veteran's death.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of the United States
ATTORNEY FOR THE BOARD
M. Zawadzki, Counsel
INTRODUCTION
The Veteran served on active duty from April 1954 until retiring in April 1974. He died in September 2008. The appellant is his surviving spouse. She appealed to the Board of Veterans' Appeals (Board) from a June 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) that, in relevant part, denied service connection for the cause of the Veteran's death.
The Board has advanced this appeal on the docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002).
Since, however, the claim requires further development before being decided on appeal, the Board is remanding the claim to the RO via the Appeals Management Center (AMC) in Washington, DC.
REMAND
Service connection for cause of death requires evidence showing a service-connected disability was either a principal or contributory cause of death. 38 U.S.C.A. § 1310 (West 2002 & Supp. 2012); 38 C.F.R. § 3.312(a) (2012). A service-connected disability will be considered the principal cause of death when the disability, singly or jointly with some other condition, was the immediate or underlying cause of death or etiologically related thereto. 38 C.F.R. § 3.312(b). A contributory cause of death is inherently one not related to the principal cause. In determining whether the service-connected disability contributed to death, it must be shown that it contributed substantially or materially, combined to cause death, or aided or lent assistance to the production of death. It is not sufficient to merely show it casually shared in producing death, rather, it must be shown there was a causal connection. 38 C.F.R. § 3.312(c)(1).
It is recognized there are primary causes of death which by their very nature are so overwhelming that eventual death can be anticipated regardless of coexisting conditions, but, even in such cases, there is for consideration whether there may be a reasonable basis for holding that a service-connected condition was of such severity as to have a material influence in accelerating death. In this situation, however, it would not generally be reasonable to hold that a service-connected condition accelerated death unless such condition affected a vital organ and was of itself of a progressive or debilitating nature. 38 C.F.R. § 3.312(c)(4).
The Veteran's death certificate indicates he died in September 2008 while an inpatient at the VA Medical Center (VAMC) in Prescott, Arizona. A VA Form 10-7132, Status Change, reflects that he had been admitted to that VAMC the prior month, so in August 2008, and had remained a patient there until his death. However, no VA treatment records have been obtained and associated with the claims file for consideration, including especially the records of his terminal hospitalization at the Prescott VAMC. So these records must be obtained before deciding this appeal, especially since relevant. 38 C.F.R. § 3.159(c)(2). See also Dunn v. West, 11 Vet. App. 462, 466-67 (1998) and Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (indicating VA has constructive, if not actual, notice and possession of these records, even though not physically in the file, since generated and maintained within VA's healthcare system).
VA also has a duty to obtain relevant records of treatment provided by private physicians or other caretakers. See Massey v. Brown, 7 Vet. App. 204 (1994). A September 2006 record of treatment from the Mayo Clinic reflects that the Veteran presented for follow-up after a left thoracotomy and left upper lobectomy for adenocarcinoma. The note indicates he had been followed by his primary care doctor, Dr. G., in Prescott. While numerous private treatment records have been obtained and associated with the claims file, treatment records from this physician have not. So, on remand, the AMC/RO should also obtain this physician's records. 38 C.F.R. § 3.159(c)(1).
The Veteran's death certificate lists lung cancer as the cause of his death. His service treatment records (STRs) indicate he received treatment for pneumonia during his service. Specifically, in a March 1958 Report of Medical History, he recounted that he had received treatment for pneumonia some 4 years earlier, in 1954, at Lackland Air Force Base. The evaluating physician commented that the Veteran had been hospitalized for 7 days, but with a normal recovery and no complications. The STRs currently on file do not include records from that hospitalization. There is no indication the RO has directly contacted the medical facility at Lackland Air Force Base to request these records. VA has an obligation to also request these records, provided, as here, there is sufficient information to identify and locate the potential custodian of these records. Sheed v. Derwinski, 2 Vet. App. 256, 259 (1992).
In addition to being treated for pneumonia during service, in September 1960 the Veteran presented with complaints of chest congestion, sneezing, headaches, and cough. The impression was upper respiratory infection. In September 1965, he again presented with a cold and cough. The impression again was upper respiratory infection. He returned five days later with complaints of an upset stomach and aches. The diagnostic impression was flu syndrome. Later in September 1965, he reported that his condition had persisted and he described coughing. The diagnostic impression was bronchitis.
In DeLaRosa v. Peake, 515 F.3d 1319, 1322 (Fed. Cir. 2008), the United States Court of Appeals for the Federal Circuit (Federal Circuit Court) held that 38 U.S.C.A. § 5103A(a) does not always require VA to assist the claimant in obtaining a medical opinion for a Dependency and Indemnity Compensation (DIC) claim, but that it does require VA to assist a claimant in obtaining such whenever it is necessary to substantiate the DIC claim. The Federal Circuit added that there was no duty to provide a VA opinion in a DIC claim under 38 U.S.C.A. § 5103A(d) since this provision is explicitly limited to claims for disability compensation, which is defined as a monthly payment made by VA to a Veteran, and therefore does not pertain to a DIC claim. Id. But see, too, Wood v. Peake, 520 F.3d 1345 (Fed. Cir. 2008) (holding that, in the context of a DIC claim, one must also consider that 38 U.S.C.A. § 5103A(a) only excuses VA from making reasonable efforts to provide an examination (or, here, obtain an opinion since the Veteran is deceased) when no reasonable possibility exists that such assistance would aid in substantiating the claim). In light of the evidence from service mentioned, including as concerning the evaluation and treatment for pneumonia, upper respiratory infections, and bronchitis, the Board finds that a VA medical opinion would be helpful in resolving this cause-of-death claim.
This medical opinion especially is needed since, aside from that evaluation and treatment in service, the record reflects that the Veteran had a history of smoking up to 11/2 packages of cigarettes per day for 15 years until quitting in 1971. For a claim, as here, filed on or after June 9, 1998, there is an express prohibition against granting service connection for any disability resulting from injury or disease attributable to chronic smoking. 38 U.S.C.A. § 1103; 38 C.F.R. § 3.300. So, in rendering this requested medical opinion, the designated VA physician must also consider the Veteran's documented history of chronic smoking.
Because the claim must be remanded for this other development, the Board further finds that additional notification pursuant to the Veterans Claims Assistance Act of 2000 (VCAA) is warranted. In Hupp v. Nicholson, 21 Vet. App. 342 (2007), the U. S. Court of Appeals for Veterans Claims (Court/CAVC) held that, when adjudicating a claim for DIC (so including for service connection for the cause of a Veteran's death), VA must perform a different analysis depending upon whether the Veteran had a service-connected disability.
The Court concluded that, in general, section 5103(a) notice for a DIC claim must include: (1) a statement of the conditions, if any, for which a Veteran was service connected at the time of his or her death; (2) an explanation of the evidence and information required to substantiate a claim for service connection for the cause of the Veteran's death based on a previously service-connected condition; and (3) an explanation of the evidence and information required to substantiate a claim based on a condition not yet service connected.
An October 2008 VCAA letter duly informed the appellant-widow that the Veteran was not service connected for any disabilities during his lifetime, and advised her of the information and evidence required to substantiate a claim for service connection for cause of death based both on a previously service-connected condition and a condition not yet service connected. During the pendency of the appeal, however, service connection was granted for hypertension for purposes of her receiving accrued benefits. In light of the grant of service connection for hypertension, albeit for purposes of accrued benefits, and because the claim is being remanded for the other development already discussed, the appellant should be furnished an additional VCAA notice letter on remand as there is now service-connected disability in the way of the hypertension.
Finally, the appellant has asserted that the Veteran's fatal lung cancer was the result of exposure to radiation during his military service. He had made the same assertion during his lifetime. Lung cancer is listed as a radiogenic disease under 38 C.F.R. § 3.311(b)(2)(iv). While the RO has addressed the radiation aspect of this claim, the August 2012 statement of the case (SOC) did not include the pertinent regulation, 38 C.F.R. § 3.311. Under 38 C.F.R. § 19.29, an SOC must contain, among other things, a summary of the applicable laws and regulations, with appropriate citations, and a discussion of how such laws and regulations affect the agency of original jurisdiction's (AOJ's) determination. To ensure due process, on remand, the AMC/RO should issue a supplemental SOC (SSOC) that includes the laws and regulations pertaining to alleged exposure to radiation, including especially 38 C.F.R. § 3.311.
Accordingly, this cause-of-death claim is REMANDED for the following additional development and consideration:
(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.)
1. Provide the appellant an additional VCAA notice letter regarding this claim of entitlement to service connection for the cause of the Veteran's death. Specifically, this additional notice letter must indicate that service connection has been granted for hypertension for purposes of accrued benefits; resultantly also must include an explanation of the evidence and information required to substantiate a claim for service connection for cause of death based on a previously service-connected condition; and must include an explanation of the evidence and information required to substantiate the claim based on a condition not yet service connected. See Hupp, supra.
2. Obtain the Veteran's terminal hospitalization records from the VAMC in Prescott, Arizona, dated from August to September 2008. Since these records are in the custody of a Federal department or agency, namely, VA, the attempts to obtain them are governed by 38 C.F.R. § 3.159(c)(2). So make as many attempts to obtain these records as are necessary to comply with this VA regulation. Also notify the appellant-widow if unable to obtain these records. 38 C.F.R. § 3.159(e)(1).
3. Request that the appellant complete and return a release form (VA Form 21-4142) allowing VA to also obtain all relevant treatment records from Dr. G. in Prescott, Arizona (as referenced during treatment in September 2006). Since these records are not in the custody of a Federal department or agency, the attempts to obtain them instead are governed by 38 C.F.R. § 3.159(c)(1). So make as many attempts to obtain these records as are necessary to comply with this other subpart of this VA regulation. Also notify the appellant-widow if unable to obtain these records. 38 C.F.R. § 3.159(e)(1).
4. Also try and obtain all records regarding the Veteran's hospitalization for pneumonia in 1954 at Lackland Air Force Base, including requesting the records directly from this medical facility. If no records are available, this fact should be documented in writing in the record and the appellant appropriately notified. 38 C.F.R. § 3.159(c) and (e).
5. Upon receipt of all additional records, forward the claims file to an appropriate VA physician for a medical opinion regarding the likelihood (very likely, as likely as not, or unlikely) that a service-connected disability either caused or contributed substantially or materially to the Veteran's death from lung cancer.
It therefore is essential the designated VA physician have opportunity to review the evidence in the claims file, including a complete copy of this remand, for the pertinent history.
This review thus should include consideration of the evaluation and treatment the Veteran received during his military service for pneumonia, upper respiratory infections, and bronchitis, but also his documented history after service of chronic smoking.
The examiner must discuss the underlying medical rationale of the opinion, if necessary citing to specific evidence in the file supporting his/her conclusions.
In the event the examiner cannot provide this requested medical opinion without resorting to mere speculation, then he or she must also provide some explanation as to why an opinion is not possible or feasible, such as there are multiple possible etiologies with none more prevalent than another, the limits of medical knowledge have been exhausted in this subject matter area, or the examiner needs the benefit of additional evidence, information or other procurable data, etc. So merely saying he/she cannot respond will not suffice.
6. Then readjudicate this cause-of-death claim in light of this and all other additional evidence. If this claim is not granted to the appellant's satisfaction, send her and her representative an SSOC and give them time to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of this claim. The SSOC must include a summary of the pertinent laws and regulations (including especially 38 C.F.R. § 3.311 in response to her claim that the Veteran's death was the result of exposure to radiation during his service).
The appellant has the right to submit additional evidence and argument concerning this claim the Board is remanding. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).
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KEITH W. ALLEN
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).